Neutral Citation No: [2008] IEHC 173
The applicant in this case is a Nigerian national born on the 16 th June, 1965. He arrived in the State and proceeded to claim asylum. His application was unsuccessful at first instance before ORAC as result of which he appealed to the Refugee Appeals Tribunal. An oral hearing was held and a decision issued on the 25 th July, 2006, which dismissed the appeal and affirmed the recommendation of ORAC that he not be declared to be a refugee.
The applicant now seeks leave to commence judicial review proceedings challenging that decision.
It is accepted by both sides that the question of the assessment of credibility was central to that decision and the challenge focuses on the manner in which the ORAC Member approached the issue.
The Tribunal Member was particularly forthright in stating the views that he had come to. So at various stages in his decision he described elements of the applicant's story as "implausible and wholly lacking in credibility" as "wholly lacking in credibility", "not credible" and "disingenuous and wholly lacking in credibility." Summarising his conclusions, he observed:-
He then went on to add:-
In order to put the criticisms made in relation to the approach taken by the Tribunal Member to credibility findings in context, it is necessary to refer in outline to the case for asylum status that was being advanced.
It is the applicant's case that he is a qualified lawyer having practiced as such for some seventeen or eighteen years. He is of Igbo ethnicity and has been a member of MASSOB (Movement for the Actualisation of the Sovereign State of Biafra) and acted as legal advisor and zonal co-ordinator for that organisation. His role within MASSOB included visiting police stations and attending courts on behalf of MASSOB members. On an occasion in early 2003, he attended the central police station in Owerri, where some twenty five MASSOB members were being detained. It is suggested that the police released the detainees but arrested and detained the applicant. All told he says that he was detained for some two months and that during this period he was subjected to very severe ill treatment which involved his right leg being hoisted on an iron bar and being beaten with various implements including an iron bar, belt and baton as well as being kicked.
In December, 2005 the movement organised what was described as a "Stay at Home Protest". Around this period, on the 9 th December, 2005 the applicant had occasion to attend a court. While returning to his home from there he was informed by his wife that the authorities were at their home. Acting on his wife's advice he abandoned his car in Owerri and went to the home of his cousin which was some twenty five kilometres away. But, soon thereafter, as his cousin became apprehensive and asked him to leave, the applicant moved to another address where he stayed for some three or four weeks before moving to Lagos, where he stayed from mid January to late February, before leaving the country via Lagos airport. He indicates that he was accompanied by an individual described as "an agent" who supplied him with a false passport which this agent carried and presented to the various immigration authorities on his journey to Ireland. This journey brought him through the Netherlands and then to Ireland. He states that on the journey he was able to pass successfully through the immigration procedures at each stage.
The Tribunal Member's decision was a careful and comprehensive one and involves the recitation of much of what was said by the applicant at the hearing, how the applicant responded to questions that were posed and issues that were raised with him. Having done this the Tribunal Member then comments that the evidence raised several credibility issues and he proceeded to list those in nine numbered paragraphs. In addition to these numbered paragraphs the Tribunal Member states that he had regard to s. 11(B) of the Refugee Act 1996, (as amended).
It is probably convenient if I set out the paragraphs and refer in the briefest outline to the issues that have been canvassed.
ORAC took the view that the fact that the applicant had submitted what purported to be a membership card called into question the credibility of the applicant and the authenticity of the card provided.
The applicant has continued to maintain that cards are issued and addressed this topic specifically in the detailed notice of appeal submitted to the Refugee Appeals Tribunal at ground 8 and there set out a quotation from a Canadian Immigration and Refugee Board document which in turn quoted two newspaper articles that had referred to claims made by the authorities that identity cards had been seized during searches and arrests.
While not referred to specifically in the notice of appeal I attach some significance to the fact that another document submitted, " Midyear Evaluation and Update on MASSOB and Case for Biafra 2005" , a somewhat partisan document, refers in passing to the fact that most of the time the Nigerian army and police arrest members of MASSOB simply for holding a lawful assembly in the privacy of their homes, possessing MASSOB ID cards , for possessing the Biafran flag, crest, car sticker or key chain. The reference is a passing one in the context of criticism of Nigerian security forces, and for that reason might be though to have a degree of credibility.
The question of whether MASSOB issued cards or not was of some considerable significance. If no cards were issued and the applicant had submitted a forged or bogus document then obviously this had serious consequences for his credibility.
In the situation where ORAC had relied on county of origin information and that reliance was addressed in the notice of appeal and alternative country of origin information referred to, I am of the view that it was arguably appropriate and necessary that the Tribunal Member should refer to the existence of the two sources of information and indicate at a minimum whether he regarded them as consistent or in conflict and if in conflict why he was preferring one over the other.
There are, of course, a series of cases such as Banzuzi v Minister [2007] IEHC 2 which state very firmly that there is no obligation on a decision maker to refer to every aspect of evidence or to identify all of the documents considered within a written decision. I completely agree with that line of authority and it is only in the context where a notice of appeal specifically challenged reliance on country of origin information and submitted an alternative source of information that I believe that it is substantially arguable that a decision maker must go further. This was an issue that I considered in the case of T. G. v. R.A.T. [2007] IEHC 377 . That related to conflicting country of origin information about the human rights situation in Togo. While on one view the documentation in conflict was much more central in T.G. for the reason I have mentioned the issue of whether membership cards are or are not issued acquired a considerable degree of significance in this case and it is in that context that I take the view that there are substantial grounds for contending that the decision was invalid and accordingly ought to be revisited. Accordingly, on this limited basis I propose to grant leave.
Approved: Birmingham J.